Tradition and Compelling Interests in Religion Cases

One quick reminder about a Supreme Court decision last week that is very important in relation to religious liberty. Ramirez v. Collier. Because the state wouldn’t allow the death row inmate to see his pastor and have him touch the execution chamber, the Court granted him a preliminary order against execution. Court ruled that the prisoner could show that his rights were violated by RLUIPA. Federal statutes prohibit prison officers from substantially violating the religious exercise of inmates. Officials cannot use any restrictive methods to achieve a compelling state goal.

Chief Justice John Roberts, writing for the Court, stated that while prison officers had strong interests in protecting executions and keeping security at the execution chambers secure, officials could choose to use more restrictive measures in order to attain those interests. For example, officials might limit volume of prayer and restrict time, or subject clergy to removal immediately if there are disruptions. This Court pointed out that the practice of having clergy accompany prisoners in executions as counsellors and comforters dates back to before the creation of the Nation.

This last point is what makes this case interesting from a jurisprudential standpoint. As Justice Kavanaugh wrote in a concurrence, the compelling interest test—also known as strict scrutiny—operates in many contexts besides RLUIPA. For example, strict scrutiny is applicable in free exercise cases. Smith v. Employment DivisionIn other contexts, too. Because it relies on judges’ instinctual judgments, strict scrutiny can make scholars and judges nervous.  The practice of strict scrutiny is often used as a balance test, and it depends on the prior commitments of judges, many times contestable.

RamirezPrison officials, for instance, had determined that exclusion of pastors from execution chamber would have a marginal advantage over the impact on RLUIPA rights. The majority and Chief Justice Roberts clearly disagreed. How could they know this? “It is difficult for a court applying” strict scrutiny, Kavanaugh wrote, “to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear.” That hardly appears legitimate, if justices use intuitive judgments.

Kavanaugh believes tradition could be of assistance here. In American tradition, the clergy has been at executions for centuries. This practice is still in place today. In other words, the presence of clergy is an ongoing tradition. Kavanaugh stated that “even though the compelling interest and most restrictive means standards can be imprecise,” but “history” and “state practice can help to structure the inquiry and guide the Court’s evaluation of the State’s arguments. Kavanaugh separately wrote to highlight this aspect of Court’s reasoning.

Marc DeGirolami, my colleague, has made the argument that tradition is an important factor in many constitutional doctrines. This includes Court establishment and freedom to exercise jurisprudence. However, traditions can’t fix all problems and eliminate all uncertainty. The process of identifying a tradition may be intuitive. However, opinions on its value will vary. Justice Kavanaugh points out that traditions can make the balancing test more predictable, and reduce intuition’s role in judicial decision making. It is worthwhile to follow his advice, both in strict scrutiny contexts and elsewhere.